1. S.A No. 1012 of 1960 is by defendants 4 and 6 and S.A No. 1028 of 1960 by defendants 1 and 2 in O.S No. 149 of 1957 on the file of the Court of the Munsif of Changinacherry. In both the second appeals the contesting respondents are the plaintiffs. The suit was for redemption of a melvaippa pattom transaction evidenced by Ext. P. 1 of the year 1079. The suit properties and other properties belonged in jenm to the Mariyappally Kottaram and Ext. P. 1 was executed by the members of the said Kottaram in favour of a person nanfed Pattathil Krishna Pillai. The rights of the Kottaram devolved on the members of the Nedumpurathu Koikkal under Ext. P. 2 of 1083 and thereafter the properties of the Koikkal were partitioned under Ext. P. 14 of 1116, being the judgment in the suit for partition, O.S No. 673 of 1109 of the Munsif's Court of Thiruvalla. The suit properties, which formed part of the properties mortgaged under Ext. P. 1 were set apart to some members of the Koikkal from whom the plaintiffs purchased the equity of redemption under Ext. P. 3 in 1957. In 1120 the Pattathil family, the mortgagee under Ext. P. 1, effected a partition of the family properties under Ext. P. 4. Under the said partition the mortgage right under Ext. P. 1 was divided into three equal shares. Defendants 1 and 2 were allotted the suit properties with a charge thereon to the extent of a third of the mortgage amount. Another third share of the properties was allotted to Janaky Amma and the rest was allotted to the 9th executant in Ext. P. 4. Janakv Amma died and in a subsequent arrangement D.W 5, the brother of defendants 1 and 2, obtained the share of Janaky Amma. Thereafter, he purchased under Exts. P. 5 and P. 6 the equity of redemption from the respective sharers in the mortgagor-family in the items allotted to Janaky Amma under Ext. P. 4. As already indicated, the plaintiffs purchased the equity of redemption in the suit items from those members of the mortgagor family, to whom that right in those items was allotted in the partition. The suit was subsequently brought for redemption of the suit items on deposit of a third of the mortgage amount as stipulated in Ext. P. 4.

2. Defendants 1 and 2, as is already clear are the present owners of the mortgage right over the suit properties. Defendants 3 onwards are tenants under the said mortgagees, defendants 4 and 6 being the contesting ones. Defendants I and 2 contended that the suit transaction Ext. P. 1 was not a mortgage but only a kanom. They further contended that the suit was bad as it was for partial redemption. Defendants 4 and 6 supported the aforesaid contentions of defendants I and 2 and in addition contended that they were entitled to cost of reclamation in case the Court came to the conclusion that they were to be evicted. The plaintiffs claimed mesne profits at 654 standard paras of paddy per year, which was also disputed by the defendants. The trial court held that Ext. P. 1 was a possessory mortgage; that the suit was not bad for partial redemption; that defendants 4 and 6 were entitled to Rs. 344.84 nP. as cost of reclamation; and that the defendants were liable to mesne profits at the rate of 650 standard paras of paddy per year. The trial Court further held that defendants 1 and 2 were primarily liable for mesne profits at the rate of 400 paras of paddy and for the remaining 250 paras of paddy alone defendants 4 and 6 were liable.

3. Both defendants 1 and 2 and defendants 4 and 6 filed appeals before the lower appellate Court and the plaintiffs filed a memorandum of cross-objections in the latter appeal. In the appeal filed by the former the only question argued was whether the suit was bad for partial redemption. The other question regarding the nature of Ext. P. 1, whether it was a possessory mortgage of a kanom, does not appear to have been raised in chat appeal. The lower appellate Court agreed with the trial Court and dismissed the appeal holding that the suit was not bad for partial redemption. In the appeal preferred by defendants 4 and 6 the only question argued appears to be regarding reclamation charges. The question regarding mesne profits, though raised in the memorandum of appeal, does not appear to have been argued before the lower appellate Court; and no reference to that question appears in its judgment. In the memorandum of cross-objections filed by the plaintiffs two objections were raised. One was that the trial Court should not have decreed any amount towards cost of reclamation, as there was a prohibition in the lease deed against making reclamation. The second objection was that the trial Court should not have split up the liability of defendants 1 and 2 on the one hand and that of defendants 4 and 6 on the other for mesne profits as primary and secondary. Both these objections were accepted by the lower appellate Court. The second appeals are against the aforesaid decisions of the lower appellate Court.

4. Defendants 1 and 2 have filed C.M.P No. 7437 of 1961 in their second appeal, namely S.A No. 1028 of 1960 for leave to raise additional grounds that Ext. P. 1 at any rate after Kerala Act IV of 1961, was no more a possessory mortgage and that the decree for recovery of possession had to be vacated. I am inclined to allow this petition and allow the appellants to raise the additional grounds.

5. Thus in S.A No. 1028 of 1960 two questions arise for consideration; namely whether Ext. P. 1 is a mortgage liable to be redeemed or only a kanom, and whether the suit as laid is bad for partial redemption. Pending suit the defendants tried to obtain stay under Kerala Act 1 of 1957, which was refused by the trial Court. The matter was taken up in revision before this Court in C.R.P No. 879 of 1958 and Vaidialingam, J., held therein that the document Ext. P. 1 was only a possessory mortgage. The decision is Ponnamma v. Devasia, 1959 Ker LT 854. The learned Advocate General, on behalf of the appellants, contends that whatever might have been the position under Act 1 of 1957, after the coming into force of the Act IV of 1961 the position has changed and Ext. P. 1 is only a kanom under the new Act. I am not convinced that the new Act has changed the law regarding the interpretation of a document to find out whether the transaction evidenced by it is a lease or a mortgage. As laid down by the Supreme Court in Ramadhan Puri v. Bankey Bihari Saran, AIR 1958 SC 941 where the question to be decided is whether the transaction is a lease or a mortgage the only guiding rule that can be extracted from the decided cases on the subject is that the intention of the parties must be looked into and that once you get a debt with security of land for its redemption, then the arrangement is a mortgage by whatever name it is called. I do not think that the provisions of Act IV of 1961 have in any way altered this principle. Therefore, the question for consideration on this point still is whether the parties under Ext. P. 1 intended the creation of a mortgage security or the creation of a leasehold for the enjoyment of the transferee.

6. The amount advanced by the transferee under the document is 17,101 rasi fanoms (about Rs. 5,000/-), a fairly large amount in comparison with the market value and extent of the properties comprised in the document, i.e, 6 acres and 54 cents. A charge is created for this amount on the properties. It is recited in the document that the transferors were in need of money to discharge some debts due by them. The properties were put in the possession of the transferee on the data of the document, namely 28th Kumbham 1079 with the crops thereon, which would be harvested only in Medam next. There are detailed term in the document providing for interest on the money advanced for the interim period from Kumbham to Medam 1079. The properties used to be cultivated only once in two years, so that the next cultivation was in 1081. Provisions are also made for adjustment of interest on the mortgage amount for the fallow year 1080. These provisions clearly indicate that the parties laid more stress on the interest of the amount advanced than on the actual enjoyment of the properties by the transferee by the cultivation thereof. The reference to pattom or rent in several places in the document does not alter this position. This word is used in the document to indicate the yield from the land and not to disclose the intention of the parties to create a lease. In view of the above provisions, I am also of the opinion that the parties intended to create a security for the proper repayment of the money advanced; and the predominant intention of the parties was not to create a landlord and tenant relationship. Therefore I hold that Ext. P. 1 is only a possessory mortgage and not a lease and the decision of the lower courts directing recovery of possession is right.

7. The next question to be considered in this second appeal is whether the suit is bad for partial redemption. The learned Advocate General contends that both under Section 60 of the Transfer of Property Act as well as under the law prevailing in the Travancore area prior to the data on which the Transfer of Property Act was made applicable to that area the suit is bad.

8. The last paragraph of Section 60 of the Transfer of Property Act lays down that nothing in that section shall entitle a person interested in share only of the mortgages property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor. The argument is that the only exception to that rule is the one contemplated under the last paragraph of Sec. 60; and that is only where the mortgagee, if there is only one, and all the mortgagees if there are more than one, has or have acquired, in whole or in part, the share of a mortgagor. In the case before ma Dw. 5 who is a member of the mortgagee family, has purchased a share of the mortgagor family's right. It is evident that in a case where there are more mortgagees than one, all such mortgagees together must have purchased a portion or the whole of a share of a mortgagor. The purchase being only by one of the members of the mortgagee family, the purchase by Dw. 5 in the present case does not strictly fall within the last paragraph of Sec. 60. But it is to be noted that this paragraph can apply only to a case, where all the parties interested in the mortgage including the mortgagee have not altered the arrangement under the original mortgage.

9. The mortgage is a contractual transaction; and if all the parties to that transaction agree the transaction can be split up into two or mora separate mortgages. By doing that the parties are not in any way trying to evade or infringe the principles laid down in Section 60 of the Transfer of Property Act. Section 60 has application only so long as the mortgage continues without having been modified or split up by agreement of all the parties. This has been laid down in Parukutti Amma v. C. Balameenakshi Amma, AIR 1954 Mad 818 by Satyanarayana Rao and Rajagopalan JJ. and I am in agreement with this view expressed by their Lordships of the Madras High Court. Therefore, if in this case it is established that the splitting up of the mortgage was agreed to, by all the parties thereto, Section 60 cannot stand in the way of partial redemption as prayed for in the suit.

10. Under the law prevailing in the Travancore area prior to the extension of the Transfer of Property Act to that area, the indivisible-character of a mortgage was accepted and has been upheld subject to three exceptions; namely (1) where the mortgagee recognised a partition of the mortgaged property among the co-mortgagors; (2) where the mortgagee himself acquired a portion of the mortgaged property; and (3) where the co-mortgagors had distinct and separate interests. This was laid down in several decisions of the Travancore High Court e.g, Madhavan Padmanabhan v. Aruvappan Madhavan, 25 Trav LR 137; Ponnel Rowel Nadan v. Muthukutty Nadan Subbayyan Nadan, 24 Trav LJ 829; and Parameswararu Govindaru v. Kanakku Velayudhan Raman, 26 Trav LJ 1053. These decisions have been followed by our High Court; e.g, see Krishna Kurup Gopala Ifurup v. Padmanabhan Raman, 1957 Ker LT 1289. Humt J. in the first of these cases quoted with approval the following passage from Gour on Transfer of Property:

“This character of indivisibility exists no. 1 only with reference to the mortgagee, who may generally be more benefited thereby, but also with reference to the mortgagor. And, save as a matter of special arrangement and bargain entered into between all the persons interested neither the mortgagor nor the mortgagee nor persons acquiring through either, a partial interest in the subject, can under the mortgage get relief except in consonance with the principle of indivisibility referred to”.

11. Thus, though the principle of indivisibility exists more for the benefit of the mortgagees, it exists for the benefit of the mortgagor, also. That rule can be altered only as a matter of special arrangement and bargain among all the parties interested. If all the parties interested in the mortgage, if all the mortgagors and the mortgagees, consent to alter the indivisible character of the mortgage, the principle of indivisibility is no more a bar against partial redemption. In the case before me a partition under the decree Ext. P. 14 took place in the mortgagor family in 1116, the mortgagors thus expressing their intention to alter the indivisibility of the mortgage. Four years thereafter the mortgagee-family also partitioned the mortgage right under Ext. P4, thus expressing their consent to treat the mortgage as no more indivisible. Under Ext. P. 14 the suit items were allotted to certain persons, from whom the plaintiffs purchased. Under Ext. P. 4 the mortgage right over the same suit items was allotted to defendants 1 and 2. In those circumstances the subsequent partition in the mortgagee-family under Ext. P. 4 has recognised the previous partition under Ext. P. 14 in the mortgagor-family. Therefore, in my view, the case falls under the first exception above mentioned to the indivisibility rule. The view expressed by the lower appellate court on this question that the case came under the second exception may not probably be correct, because the purchases under Exts. P. 5 and P. 6 are not by all the mortgagees, but only by one of the persons, who got a share in the mortgage right. After effecting the partition under Est. P. 4 by all the members of the mortgagee family, subsequent to the partition by all the members in the mortgagor-family, in effect approving and recognising the partition in the mortgagor-family, defendants 1 and 2 cannot now turn round and raise the plea of indivisibility of the mortgage. By the partition in their own family they have recognised the disruption of the singleness of the mortgage, already effected by the partition in the mortgagor family. Therefore the second appeal fails.

(The rest of the Judgment is not material to the report).

KF/D.H.Z

12. Order accordingly.